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People v. Ginther

Supreme Court, Richmond County

December 5, 2013

The People of the State of New York,
v.
James Ginther, Defendant.

HON. DANIEL M. DONOVAN, JR.District Attorney of Richmond County by: Adam Silberlight, Esq. Assistant District Attorney Of Counsel

DANIEL D. CHU, Esq. Attorney for Defendant

Robert J. Collini, J.

A combined Dunaway/Huntley [1] hearing and "chemical test refusal hearing" (VTL 1194 [2][f]) having been held before this Court on October 4, 2013 on those branches of defendant's omnibus motion to suppress evidence, and upon consideration of the arguments of counsel [2], it is decided as follows:

FINDINGS OF FACT

POLICE OFFICER SCOTT SAMARISI of the 122nd Precinct testified on behalf of the People. He was the sole witness at this hearing. Having observed his testimony and overall demeanor, the Court finds his testimony credible in all respects.

A police officer with a seven-year tenure with the New York City Police Department, he received training in the recognition of individuals under the influence of alcohol and drugs and made approximately 75 arrests for driving under the influence (VTL 1192).

P.O. Samarisi was working on December 29, 2012 from 11:15 p.m. to 7:50 a.m. on December 30, 2012 inside the 122nd Precinct as a telephone switchboard operator under the supervision of his lieutenant-supervisor at the desk.

At 1:30 a.m. on December 30, 2012, defendant - who had three small children with him - came inside the precinct to report that he was in an accident. He claimed that another person cut-off his vehicle at Amboy Road and Armstrong Avenue; that person (a male) exited his car and claimed that defendant sideswiped his vehicle while they were driving.

Defendant continued that the other driver possessed a tire jack and that he had swung it at him. Over the course of approximately five minutes, defendant was incapable of explaining to P.O. Samarisi, specifically how the other driver allegedly threatened him with the jack.

P.O. Samarisi observed a strong odor of alcohol on defendant's breath; red, watery eyes; an unsteady gait; and slurred speech. It was his opinion that defendant was intoxicated. He asked defendant if he had anything to drink, to which he replied that he was driving from a family party and had only a couple of teas. He added that his Econoline van is parked across the street, which P.O. Samarisi did visually observe [3].

Police officers Morales and Scarran from Staten Island Task Force - who were at the precinct when defendant was present - were asked by P.O. Samarisi to administer a portable breath test (PBT) to defendant. (P.O. Samarisi indicated that his PBT was not readily available, but that he has used that device numerous times.)

He was told that if he passed the test, he would go home; if he did not pass the PBT, he would be arrested. The results of the PBT test [4] (referring to the Intoxilyzer SD-2) showed defendant's Blood Alcohol Content (BAC) as.17. He was immediately placed under arrest at that time (approximately 2:26 a.m.).

Immediately following his arrest, defendant was removed to the 120th Precinct Intoxicated Driver Testing (IDT) Room. P.O. Samarisi drove defendant to the ...


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